Bonin v. Ferrellgas, Inc.

877 So. 2d 89, 2004 La. LEXIS 2104, 2004 WL 1475375
Supreme Court of Louisiana·Decided July 2, 2004·No. 2003-C-3024·Published·Cited by 86 cases

Opinion

877 So.2d 89 (2004)

Michael BONIN, et al.
v.
FERRELLGAS, INC., et al.

No. 2003-C-3024.

Supreme Court of Louisiana.

July 2, 2004.

*90 Louis C. LaCour, Jr., Robert Markle, Adams & Reese, New Orleans; Steven G. Emerson, Thomas H. Davis, Stinson, Morrison, Hecker; John E. McElligottr, Jr., Davidson, Meaux, Sonnier, McElligott & Swift, Lafayette; Larry A. Stewart, Stafford, Stewart & Potter, Alexandria; David R. Frohn, Frohn & Thibodeaux, Lake Charles, Counsel for Applicant.

Jennifer A. Jones, Jennings B. Jones, III, Patrick K. Hebert, Jones Law Firm, Cameron; Philip G. Hunter, Hunter & Morton, Alexandria; John W. deGravelles, deGravelles, Palmintier, Holthaus & Fruge, Baton Rouge; Daniel K. Wall, Marcantel, Marcantel, Wall & Pfeiffer, Jennings; Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles; Peter B. Derouen, Michael C. McMullen, Michael J. Remondet, Jr., Jeansonne & Remondet, Lafayette; Michael L. Hyman, Edgar D. Gankendorff, Provosty, Sadler, Delaunay, Fiorenza & Sobel, Alexandria; Scott H. Fruge, Baton Rouge, Bruce D. Beach, Nora M. Stelly, Allen & Gooch, Lafayette, Counsel for Defendant.

VICTORY, J.

We granted this writ to determine whether the court of appeal misapplied the *91 manifest error/clearly wrong standard of review in reversing a jury verdict in favor of the defendant, Empiregas, Inc. of Lake Charles ("Empiregas"). After a review of the record and the applicable law, we reverse the judgment of the court of appeal and reinstate the trial court judgment in favor of Empiregas.

FACTS AND PROCEDURAL HISTORY

In August of 1995, six young adults staying in a rental cabin, Cabin R-6, at the "Richard Cabins" in Holly Beach, Cameron Parish, Louisiana, were severely burned when their cabin caught fire. The fire department's investigation discovered an open and uncapped propane gas line located along the cabin's south wall.[1] The fire was caused by propane gas that had leaked from the open, uncapped gas line valve. Defendant Lawrence Lanclos ("Lanclos") owned and operated the Richard Cabins, comprising ten units, which he purchased in 1986. Propane gas for all of the cabins was originally provided by a single, red propane tank. Beginning in July of 1986, shortly after Lanclos acquired the property, Empiregas began servicing and providing propane gas to the cabins. Empiregas made ten deliveries of propane gas to the Richard Cabins, beginning on July 16, 1986 and ending on December 11, 1987. During this time period, Empiregas did not inspect the entire propane gas system at the cabins as required by law.[2] However, the gas line in Cabin R-6 was neither open nor uncapped during this time period as a space heater was attached to the outlet.

Lanclos had no records of receiving propane gas service from anyone after December of 1987 until a delivery was made by Ferrellgas, Inc. ("Ferrellgas") on May 12, 1989. Ferrellgas remained the sole servicing dealer for more than six years, including the time period when the fire occurred. Ferrellgas's last delivery of *92 propane gas to the cabins was one week before the accident. When Ferrellgas began servicing the account, it also failed to inspect the entire propane gas system at the cabins.

In addition, when the 1995 accident occurred, propane was being supplied by Ferrellgas to Cabin R-6 from a silver propane tank, which Lanclos himself had installed five months earlier. Lanclos had determined that the red tank was no longer safe, so he bought and installed the silver tank. This silver tank replaced the red propane tank that supplied gas to the cabins at the time Ferrellgas began servicing the cabins in 1989. Ferrellgas knew that the swap-out of the tank required an inspection of the entire system, but it failed to perform the inspection.

The record reflects that had Ferrellgas conducted the required inspections, it would have discovered the uncapped line in Cabin R-6. Lanclos testified that sometime in 1988, he removed the space heater that was attached to the outlet but failed to cap it. This occurred after Empiregas had ceased servicing the account, but before Ferrellgas began servicing the account.

The victims of the fire, Michael Bonin, Brent Benoit, William John "Billy" Britt, John Perez, Jeffrey Kebodeaux, and Angela Thibodeaux, along with their respective parents and/or children ("plaintiffs"), all filed suit for their injuries against Lanclos and Ferrellgas. These suits were later consolidated. On June 27, 1996, plaintiffs and Ferrellgas entered into a "Mary Carter" settlement for $18,000,000.00. The terms of the agreement required plaintiffs to sue Empiregas and to pay Ferrellgas, its insurer, and its counsel 56% of the first $18,000,000.00 recovered from Empiregas. Ferrellgas then aligned itself with plaintiffs and agreed to help them prosecute their claims against Empiregas.

Empiregas moved for summary judgment on the grounds that the risk that led to the accident, the uncapped valve in Cabin R-6, did not exist when Empiregas provided propane service to the cabin. Empiregas established this fact through several depositions given by Lanclos. Plaintiffs then produced an affidavit from Lanclos stating that after reviewing matters with plaintiffs' counsel, he wished to recant his testimony. The trial court granted Empiregas's motion for summary judgment. The Third Circuit reversed on the grounds that the trial court had based its decision on Lanclos's testimony. Thibodeaux v. Ferrellgas, Inc., 98-0862 (La.App. 3 Cir. 1/6/99), 741 So.2d 34. The court found that the "apparent contradictions and Lanclos's explanations ... are arguable and best left to the jury." Id. at 42.

Trial on the merits went forward in the 9th JDC on November 6-16, 2001.[3] The jury returned a verdict in favor of Empiregas, answering "No" to Jury Interrogatory # 1, which asked "Was Empire Gas, Inc., Empire Gas of Lake Charles, Inc., its agents, servants or employees negligent, and, if so, was such negligence a proximate *93 cause of [each plaintiff's] burn injuries?"[4] The trial judge entered judgment in accordance with the verdict and also granted motions for directed verdict dismissing Lawrence Lanclos.

The Third Circuit reversed, finding no "reasonable basis upon which the jury could have reached the conclusion that Empire was relieved of all liability for the injuries Plaintiffs sustained." Bonin v. Ferrellgas, Inc., 02-1031 (La.App. 3 Cir. 8/6/03), 855 So.2d 781, 799. The court of appeal found that Empiregas breached its duty to inspect the entire Richard Cabins propane gas system before initially servicing the account, and that this duty extended to those who rented the cabins even after Empiregas had ceased servicing that account. Id. at 795-96. Then, recognizing that even if Empiregas was negligent, it would be excused from liability "if an intervening cause superseded the original negligence and, alone, produced the injury," the court of appeal found that "the entire cause-in-fact inquiry turns on Mr. Lanclos' knowledge of whether he needed to cap the valves." Id. at 797. The court of appeal dismissed the argument that Empiregas's failure to inspect the cabins was not a substantial factor contributing to the fire, even though at the time of Empiregas's service, the line in Cabin R-6 was not uncapped due to the existence of a space heater. Instead, the court of appeal reasoned that if Empiregas had performed an inspection of the entire system, it wou

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Bonin v. Ferrellgas, Inc., 877 So. 2d 89, 2004 La. LEXIS 2104, 2004 WL 1475375 (La. 2004).

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